Recently the NJ Turnpike has filed a suit to prevent the airing of a 42-second video of a car crash:
“Because the videos of the car accident were recorded using the NJTA’s cameras and support equipment, the videos are original creations of the NJTA and constitute the copyrighted property of the NJTA,” Turnpike Authority attorney Donald E. Taylor wrote in a complaint filed late Tuesday in U.S. District Court in Newark.
One may wonder how, under Feist, the mere positioning of a camera could be sufficiently original to merit copyright protection. Setting up a camera trained on oncoming vehicles seems no more original than alphabetizing names. Compare this situation to LANS v. Tullo:
Professor Nimmer’s treatise reports that . . . “[almost] any . . . photograph may claim the necessary originality to support a copyright merely by virtue of the photographers’ personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken.” Nimmer on Copyright, 2.08[E], at 2 – 126.3 (1992 ed.) . . . [T]he creative decisions involved in producing a photograph may render it sufficiently original to be copyrightable and “have carefully delineated selection of subject, posture, background, lighting, and perhaps even perspective alone as protectible elements of a photographer’s work.”
Whether or not every photograph or raw videotape is original and therefore copyrightable, it is clear from the record in this case that the preparation of the two videotapes at issue required the intellectual and creative input entitled to copyright protection. The district court so concluded after hearing testimony, from the operator of the video camera and the pilot of the helicopter in which the camera operator flew, regarding the production of LANS’s news videotapes in general and the tapes in this case in particular. The witnesses described the initial decisions about the newsworthiness of the events and how best to tell the stories succinctly and effectively; the selections of camera lenses, angles and exposures; the choices of the heights and directions from which to tape and what portions of the events to film and for how long. The camera operator described herself as “an artist. I use a paintbrush. I use the camera to tell a story.”
Is the mere placement of a camera on a tollbooth to tape oncoming cars comparable? What if all the decisions to tape are made by software, mechanically; would that be sufficiently original? Pam Samuelson’s perspective on such issues is mentioned in this article. Interestingly, “some countries have defined the author of a computer-generated work as the user or person who defines the query.” If the turnpike camera were programmed to take an image of cars that suddenly veered toward it, perhaps the author would be the driver, under that rule.